A youngish lawyer in court today asked me about the blog: "What's going on with that podcast?"

You may recall that I became engrossed in Serial, the investigative report turned podcast by All Things Considered. I have not been able to finish my review of the lessons in law apparent from that series. Work simply keeps me moving away from this blog and onto other more pressing matters. But it is lunch time, and I have an apple and a bottled water, so here goes.

Episode 4 looks at the question of whether Jay (a possible suspect in this murder mystery) should be believed when he says Adnan murdered Hae Min Lee. When Jay's girlfriend is questioned by the police, they tell her that "everyone's a suspect." So she tells the cops that Jay told her he helped Adnan bury the body. She talks about shovels and Jay getting rid of his own clothes so there is nothing to trace back to him, even though Jay swears he wasn't even with Adnan when the body was buried.

But every time he tells his story to the cops, it changes. First he says that he saw the body in the trunk of Hae's car on Edmonds street. Then he says it was at Best Buy. Ultimately Jay admits he lied. He says he was afraid there were cameras at Best Buy so he told that Edmonds street story to stay clear of the assumption that he helped kill Hae. He does not want to be a suspect.

What separates Jay from Adnan or anyone else is that he has something to convince the cops he is telling the truth. Jay knows where Hae's car was dumped. And he takes them there. Even though he has lied to investigators, and perhaps his girlfriend, they believe him because he knows where the car was left.

Of course it is also possible he knows where the car is because he left it there. If Jay is the killer, Adnan has spent the last fifteen years in prison for a crime he did not commit.

Your takeaway? If you are a lawyer - you already know that everyone's story "changes" over time, even your clients' stories. More stories are not better than one, truthful story. If you are an accused - the critical question of whether you will be believed may depend on corroboration. Jay led the cops to the car. That ability to show you have the truth may be critical in your case, but you likely should let a lawyer sort out the story before telling anyone.

And there is more news for Adnan Syed - the Maryland Court of Special Appeals has agreed to hear his case. Two prior attempts at a hearing drew the axe, but apparently five or six million listeners may move the needle enough to cause even the robed ones to consider whether Adnan's trial lawyer (now deceased) botched the investigation and trial, thereby entitling him to a new trial. Fifteen years after the murder, Adnan may catch a break. More to come later on that front.

Apple's gone. Water bottle is empty. Time to get back to selling reasonable doubt for a reasonable price.

“For the last year, I’ve spent every working day trying to figure out where a high school kid was for an hour after school one day in 1999. Or, if you want to get technical about it (and apparently I do), where a high school kid was for twenty-one minutes after school one day in 1999….”

And so it begins. Serial, a podcast from the creators of This American Life, hosted by Sarah Koenig.

The true story is told a week at a time. It takes us through Koenig’s investigation into the disappearance and murder of Hae Min Lee, a high school senior. Her ex-boyfriend Adnan Syed sits in prison today, fifteen years later, convicted of murdering Hae Min. He was seventeen years old when she disappeared and he had to answer that question: "so where were you on January 13, 1999?"

Hae Min Lee was the daughter of immigrant Korean parents and he, the first generation son of immigrants from Pakistan. His family is Muslim. Hers is not. Their love was a secret from both families. He can’t get permission to go to the home coming dance because, well, as I said he is Muslim. In Islam, genders do not mix until marriage. There is no “dating” in his culture, at least not his parents’ culture. Secretly he is not a good Muslim. He dates, he drinks, smokes weed, and hangs out with kids who do the same. But, he thinks, on the scale of stuff that kids do, his sins are minor. He is a good kid, with good grades, headed for college and an American life.

But did Adnan kill Hae Min? Or was it Adnan's friend Jay, who tells detectives he helped Adnan bury Hae Min. Jay got a sweetheart deal and avoided trial. He got probation, while Adnan got life.

Here you find plot, characters, a true crime “who done it” with the ups and downs of the journalists who try and figure out if Adnan is wrongly convicted. Sometimes, Koenig confides, she thinks he might be guilty. Sometimes she cannot believe he did it.

So did he kill his high school sweetheart? Did the police botch the investigation? What about his lawyer – did she throw the case to collect more money on an appeal?

The first episode is entitled The Alibi. It will hook you and you will not soon stop listening. As I started the podcasts on my trip to a court hearing a hundred or so miles north of me today, I was reminded that great storytelling must be shared and we lawyers can learn much from Koenig.

If you are charged with a crime you will learn more about the system – cops and judges and the way that lawyers work, or should work - than anything else you are likely to read or listen to. It may cause you sleepless nights because you must confront the reality that almost nobody starts out believing you are innocent - presumptions be damned. But more about that later.

And if you are a trial lawyer; a guy like me with baggy pants, an aging face and a love of battles before parties of twelve, you will be captivated. I don’t say this casually. This series is filled with lessons for lawyers about (drumroll please):

STORY.

The only real way to win at trial is to tell our clients’ story. Even when we do that well we may still lose, but this much is clear.

No story, no chance.

Story sells. Not lawyers. Not high priced suits with fancy briefcases. Nope. Story, and the ability to convey that story to the jury. The best lawyers are the best storytellers. Period.

So go to the website (serialpodcast.org) and start to listen. Serial begins with this dilemma – how would you tell an investigator who believed you killed your former girlfriend and secret lover where you were, what you saw, who you were with and the sequence of a day that happened six weeks ago?

Assume your life and freedom depend on it.

Because it might. For Adnan Syed, it did. Your alibi is your story.

And then let’s talk about storytelling in the next week or so – if I can ever break away from preparing for that next trial.

So, you have been charged with a misdemeanor. You are probably feeling overwhelmed, nervous, and at least a little bit confused about the process ahead of you.

What Is A Misdemeanor?

A misdemeanor is defined as any “lesser criminal act.” Misdemeanors are punished less severely than a felony, generally including any crime punishable with jail time for one year or less (with some exceptions). This includes: petty theft, simple assault, disturbing the peace, trespass, vandalism, reckless driving, DUI (first or second offense), and many others.

Just because you charged with a misdemeanor does not mean you should go to court without a lawyer. A misdemeanor conviction can have serous consequences for your life, now and in the future.

Do I Need An Attorney?

Even in small cases you may need a lawyer. Your case matters and you should get the best legal advice you can. Even a simple DUI can have a huge impact on your life; you need an attorney that cares about you and your future.

If you are debating whether or not to hire an attorney I would suggest you take the time to carefully consider a couple of things:

1.The Process

A criminal case is a winding, confusing process filled with red tape and potential pitfalls. Your case may involve motions, court orders, hearings, pleas, or even a jury trial. In order to navigate this process it is important to have a guide. An attorney will be able to explain what is happening, as well as take necessary action on your behalf.

Even if all you want to do is plead guilty, an attorney will help negotiate a punishment that is agreeable to both you and the state. Having an attorney in your corner can make all the difference in the severity of any punishment you receive.

2.The Consequences

If you are convicted of a misdemeanor, the penalties can have a substantial impact on your life. Direct penalties for a misdemeanor can include: jail time, probation, fines and court cost, certain license suspensions or revocations (drivers license, hunting license, etc.), alcohol/drug counseling, expensive rehabilitation classes, and more. Unfortunately, many of these penalties are time consuming and cost significant amounts of money. For example - if you are convicted of domestic battery, you may have to spend 52 weeks in a specialized court, that requires participation in counseling and treatment. All that costs money! A fine in a misdemeanor case can be $1000 or more. Small case? Not if you have a big fine, mandatory classes and the loss of a privilege (like a hunting license).

There are also many indirect penalties associated with a misdemeanor conviction. The conviction will be reported to a criminal database that is accessible to the public. This means that anyone who performs a background check on you, including potential employers, leasing agents, and school admissions administrators, will know about your conviction. This can have a significant impact on your present and future employment opportunities, educational opportunities, federal student loans, immigration status, standing in the community, and relationships with family and friends.

3.Going To Trial: It May Be Worth The Risk

Often in misdemeanor cases, the difference between the prosecutor’s settlement offer and the penalty a defendant would receive if convicted at trial is small. The only difference may be in the amount of a fine or the number of community service days. Because of this it may be worth the risk to take the case to trial.

While going to trial is just one of many avenues you can choose in a misdemeanor case, it may be the right choice for you. Many people are bullied into taking plea deals because they have an unrealistic expectation as to what penalties would be if they lost their case at trial. Prosecutors often scare people by reciting the maximum penalty available under the law. An attorney can use their experience with cases similar to yours to provide you with a realistic approximation of what the penalties would likely be if you were convicted at trial. This information will give you a better idea of what you would actually be risking if you went to trial. In the end, trial may be worth the risk.

4.It May Not Be As Expensive As You Think

The number one reason criminal defendants do not hire an attorney is their mistaken belief that they cannot afford one.

Defending a misdemeanor charge does not involve as many hearings, as much evidence, or, quite simply, as much time as defending a felony charge. This means that hiring an attorney could cost you considerably less in a misdemeanor case than it would in a felony case.

Don’t be afraid to call our office, discuss the case, and ask us how much it would cost for you to be represented by Peterson Lawyers. These are common conversations that we have every day. We will happily discuss potential costs of representation and explain how we came to that number.

A couple weeks ago I tried a criminal case that alleged my client had unlawfully taken a trophy deer (by hunting with an unlicensed guide) and had aided a thirteen-year-old girl unlawfully take an elk by using his tag on an elk the State said she killed. The jury found my client NOT GUILTY on both counts, but what amazed me was the fact potential jurors had lied about their own criminal charges.

A questionnaire sent to persons called for jury service were asked a very simple question: Have you ever been a defendant in a criminal case? Three of the 24 persons who answered "no" actually had been charged with crimes. I had their records. One other juror admitted he had been a criminal defendant but said it involved only a "bar fight." This guy had several other charges in other cases - none of which he disclosed.

Jurors lie.

They do the same stuff we all do when confronted with our failures. They minimize their own misbehavior.

Knowing this can be an important guide when making peremptory challenges. Those are the challenges for no particular cause that has to be disclosed. My thinking at the time was that a man who did not want to disclose his DUI charges would probably line up more with my client than the State's Fish and Game "detective." In the end, I left one of those "non-disclosers" on the jury, and I think it was a good call. People who have had a run in with the law are less likely (I think) to believe the Defendant got a fair shake by those investigating his case. If a juror thinks the defendant was not treated fairly, the state's case will suffer. When that happens, the defense has a chance. And when you have a chance you need to exploit that opportunity to hear the magical words, "not guilty."

By the way - those Fish and Game officers tend to wander a ways from the truth too.

In this case, the investigator swore he had NOT threatened to go and arrest the thirteen-year-old girl who allegedly shot the elk. When I asked him, under oath, he protested he did not tell her father he would charge her with the crime - a fact that her father (who was not a defendant in the case at trial) testified was false. He said the Fish and Game officer had done exactly what he swore he had not. He was telling that jury they could not believe the officer.

When it was all over, the jurors did not believe the Fish and Game guy. They believed he had lied about the threat. They chose my client's version over his. When that happens the State loses. In a sense the case was more about the F&G officer's testimony than it was about who shot the elk - by the way, it wasn't the girl.

Here's my take away - the best defense at trial is preparation. Be ready for the jurors who can't recall having been defendants, and be ready for investigators who have threatened their prey with arrest or worse if they don't cooperate.

Be ready for trial. Know all the facts. Know the law, and figure out how the facts of your case and the law collide. Then get ready to win your case.

The news tonight declares that Kennedy cousin Michael Skakel has won a new trial because his criminal defense lawyer did not do enough to provide an effective defense. Robert F. Kennedy was his uncle. Mr. Skakel was convicted of the murder of Martha Moxley in 1975. She was beaten to death with a golf club after she and friends attended a Halloween party at the Skakel home.

Mr. Skakel was convicted in 2002. I actually met Michael Skakel in the fall of 2000 at a reception for incoming students at a New Hampshire school my son and his daughter attended. The word on the street then was that he would be charged, and the word became truth sometime later. He was convicted and sentenced to 20 years to life. Martha Moxley's death remained "unsolved" until the conviction some 27 years later.

But now about that conviction - you see a criminal defense lawyer has a duty to provide the "effective assistance of counsel" as he represents his or her client. That means more than just going through the motions (forgive the pun). It means the defense lawyer has to work his or her butt off to learn the facts, learn the law and figure out how the two marry-up. It means the lawyer needs, in the words of the Judge ordering a new trial, "attention to detail, an energetic investigation and a coherent plan of defense."

If you are charged with a crime, you don't need a celebrity, you need a fighter. Someone who will turn over the rocks and figure out how to save your bacon. You need a committed advocate. A beast. Someone who can take a body blow or two and keep advancing. You need a soldier.

And the court in Skakel's case said Michael did not have that. His lawyer didn't do that according to the judge. Did he? Can't say. I wasn't there.

But you know what this means? Skakel has another chance to find his fighter. He has another chance at convincing a jury he is innocent. I know - he doesn't have to prove anything as the defendant, but don't kid yourself. He's got "some 'splainin' to do."

Unless of course, the next appellate court says otherwise. He is still in prison, awaiting the State's next move and a potential decision on bond reduction.

What should you take away from this news? Two things:

First, choose your lawyer carefully. Insist on someone who will do battle for you, who would lead a party of warriors into Hell to find you. Anything less will not give you the edge you need to stay in the game.

Second, in the words of General Eisenhower, "Never, ever quit."

Skakel has maintained his innocence the entire time. He didn't get parole at ten years, in part because he would not admit any involvement in Ms. Moxley's death. He never quit believing and trying to clear his name.

Honestly, most criminal defense lawyers work their cases and try to win. The biggest impediment to being fully prepared is money. You buy time when you buy that lawyer, and the more time you can afford the better your chances of winning.

Got a case? Want to talk? Call us? We focus on building a winning case.

So I took a little break from blogging about criminal defense, DUI defense, civil trials and matters of wrongful death. And then things just started "popping up." A new case or twelve. A kid in jail who just could not get it together. A former Marine facing life changing decisions. The mentally ill - fearing life and death as they try to remember why they are sitting in jail awaiting a trial that seems never to come. Murder. Designer drugs - did they cross the line? A power plant that didn't. And time for playing in McCall with my three grandkids - who now enjoy riding Big Mabel (a "tube" of sorts that skips along the water behind my aging MasterCraft).

But now - even as I face the biggest case of my life - it seems right to do this all over again.

So I am back.

Here are three things I learned over the past five or so months that might help you practice law (if you have a shingle) or find the right warrior to advance your case if you have been charged with a crime or injured because some other guy wasn't paying attention:

First - all that stuff I believe about the value of a person's story as it relates to his or her case is in fact, the most important stuff. After a recent trial I got a call from another lawyer who had sat in the courtroom and watched me cross-examine a couple witnesses. "Your client never needed to testify," she said. "You told his story with the witnesses, even when they refused to answer your questions."

The story is the key. Sometimes it won't be enough to win, but without the story you don't have a chance. Maybe your have been charged with a simple battery. A bar fight started and you tried to help a friend who was too drunk and too small for that bull of man who ran his mouth and then his fists. The story is not the fight - it is all that stuff that got him to the decision point: swing and defend a friend or run and hide. If the jury doesn't hear the story, smell that bar, taste the stale beer in the air and smoke in your lungs - well - without that stuff you lose.

Second - jury instructions are a mess, no matter what we do! As lawyers we have to do a better job drafting our model instructions. When you are on the defense it seems like a waste of time to bother drafting instructions anymore because every judge simply refuses to not follow the advice of the Supremes: "just give the IDJI." The Idaho Jury Instructions are no better or worse than any other set of instructions drafted by prosecutors and judges, but they are no help to defendants. In each of my last four trials the jury has asked for further instructions - and the judges and lawyers (me too) have all refused to go further because to do so will invite an overturned verdict.

I don't have an answer to this problem except for us as lawyers to try harder to get instructions that are informative, and crafted in language that people will understand. Sometime not too long ago I wrote about "Normans and Saxons." Read that stuff if you have the interest in being a better lawyer, not because I wrote it, but because a Judge who understands language said it better than I can.

Third - misdemeanor defendants do not quite understand how much impact that misdemeanor conviction can have on their lives. One in four Americans now has a criminal conviction. Most of those folks committed crimes that are misdemeanors. Little stuff. Right?

Maybe not. I get so many inquiries each week from folks who want - NEED - to get their records "expunged" to move forward in their lives that I cannot really get to them all. I could probably just hire a young lawyer to do the Idaho expungement dance, but that dance does not really get rid of your conviction and almost nobody disagrees that more must be done here by the legislature. Let's push next session to try and get some real relief. I say this especially in view of the actions by Washington and Colorado to legalize marijuana. We have a lot of pot related "criminals" who will suffer from that conviction stigma for their lives.

Time to do better.

Summer's over and until there is snow, we have time to get back to being trial lawyers.

But let me ask you this: are trial lawyers a thing of the past?

How many trials have you completed this year?

And won't e-discovery simply end the practice of law entirely? Sifting through tens of thousands of documents is not what we were trained to do and the costs associated with that effort threatens to end the use of trial procedures to "resolve" disputes.

It happened a couple weeks ago in Canyon County. Our client faced felony charges for aggravated assault with a deadly weapon and a misdemeanor malicious injury to property count. The case involved an argument between ex-spouses that ended with one spouse refusing to leave the other's property. The "trespassing" spouse acknowledged she had been repeatedly asked to leave but she would not. Finally my client went upstairs and brought a handgun to the kitchen. She still did not leave. She had taken his cell phone so he could not call for help and he had a broken leg. Finally, he went next door and got help.

The case is really about a claim that my client pointed a gun at his ex and said he was going to kill her. That story had changed from when she told the police officers that he had said "nothing" while pointing the gun at her, to "you're gonna' die...." Good cross-examination using the prior "nothing" statement showed the inconsistency and the jury understood the facts were not as she portrayed.

The property that was alleged to have been injured was my client's keys. So the essence of that charge was that he injured his own property.

Not Guilty.

Those are the nicest words at trial. Still, a lot of time and effort was required to get there. Fortunately our client could hang in there.

Here is a lesson I learned during the trial - do not go gently into that arena. Be nice and tell your story, but if you have to get a little tough with the complaining witness, be ready to do so. I don't mean badger the witness for that never gets results, but be ready to stand your ground.

And tell your story. Our client's story was pretty simple - she absolutely would not leave and she had taken his phone to prevent him from calling the police.

No time to rest on that little laurel, but happy to report the victory.

Years ago I was getting ready for a monster trial - pitting the ultimate power of the United States against a little guy who held out in the face of an all out attack on his home. People died. Protestors gathered. Television cameras rolled and major magazines wrote headlines in anticipation of an almost certain end. Tanks and helicopters ferried officers and snipers about until the thing finally ended.

As the time for trial neared - nearly nine months after the siege - the question of whether we could settle the case arose. The Sage - a burley mountain man of a lawyer who was our leader - looked me square in the eyes and said it best:

"We only go to trial if we have to. If we can settle any case and walk away with our heads up, that's what we do."

To win your case at trial you have to know if it can be won. Then again - what is winning?

If you are charged with aggravated assault with a deadly weapon (pointing a gun at someone, a felony) and the government offers to accept a plea to simple assault (a misdemeanor), should you go to trial? I suppose it depends on your tolerance for the pain of a possible felony conviction. Sometimes you know that what you did went too far, and you can swallow a little crow and pay a small price to avoid the possibility of a felony conviction. Sometimes you can't. And sometimes the government makes that decision for you - they refuse to negotiate and settle.

Then you try your case.

Here's the starting point: is there an alternative to trial?

Last summer we prepared for a wrongful death trial in Wyoming. Our clients had lost their son while he was skiing at a well-known ski resort. This was the second such case we had handled against that resort in the past five years or so. In each case, the lawyers were the same, the decision-makers were the same, even the experts were the same. Two lives lost. Families destroyed. The ski industry almost never settles until you are almost at trial. They spend money defending their industry, even in the face of an unnecessary death.

The case settled just a few weeks before the trial was to start. Why? Because each side understood the risk of going to trial. We all knew that juries are impossible to predict, regardless of how many mock trials or focus groups are done. And we did not have to try the case to win.

Our clients had already lost their son. They wanted a resolution that mostly included an acknowledgement of their loss and the defendants' partial responsibility. A mediated settlement achieved that solution.

If you have a case - civil or criminal - and a trial is your only way out, by all means, go and fight and do everything you can to "win." But after 31 years in the courts, I can tall you the Sage is right. If there is another solution, explore that option first.

Think you have a civil case? Wrongful death? Personal injury? Wrongful discharge? Or a criminal matter? Maybe we can help you win - whether you go to court or not.

As any experienced Idaho criminal defense lawyer will tell you, the vast majority of cases are resolved with a plea bargain long before they ever reach a courtroom. Plea bargains are important to prosecutors because they help efficiently clear dockets and allow them to prosecute more cases. They can also be beneficial to defendants by allowing them to serve a lesser sentence than what the state would ask for during trial. However, a plea bargain can only be effective if the defendant is aware of it in the first place.

In a 5-4 decision, the Supreme Court ruled that defense lawyers must inform their clients of any plea offers and give competent advice about whether to accept them. To do otherwise would violate the 6th Amendment right to effective assistance of counsel.

The two cases before the court involved a man in Missouri who pleaded guilty to driving without a license, and a Michigan man who was convicted of assault and attempted murder after following his attorney’s advice and rejecting a plea bargain.

In the Missouri case, Galin Edward Frye was arrested for driving without a license for the fourth time, a felony. The prosecutor offered two deals, including one that involved pleading to a misdemeanor and a three month recommended sentence. Frye’s attorney never told him of the offer, which ultimately led to him entering a guilty plea and getting a three year sentence.

In the Michigan case, Anthony Cooper repeatedly shot a woman, and was charged with four counts, including assault with attempt to murder. The prosecutors offered a plea deal where two of the charges would be dropped and Cooper would serve a maximum of 85 month in prison. Due to incorrect advice from his attorney, Cooper rejected the deal and was sentenced to a maximum of 30 years in prison.

In the majority opinion, Justice Kennedy wrote:

“This court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused… when the defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.”

Justice Scalia dissented, claiming that the decision was “absurd” and that courts would be inundated with criminals making claims about how their plea bargain rights were violated. He also noted that it was unfair that prosecutors were being punished with extra work due to the errors of defense counsel. In his own dissent, Justice Alito also worried about “[expenditures] of scarce prosecutorial or judicial resources.”

Both cases will be sent back down to the lower courts for further review. It remains to be seen if this “flood of claims regarding the violation of plea bargain rights” feared by the conservative justices will actually come true.

So what will be the impact on plea bargains in Idaho? First, these cases raise the bar for all of us who advise clients on the effect their plea will have. Make certain you understand what the State or US is agreeing to before you plead. Second, ask your lawyer if he or she has had any additional offers from the prosecution. Formal offer or not, you need to know just where your case is going and just what the prosecutors will do in exchange for your plea.

I watched a young criminal defense lawyer struggle with objections the other day so I thought I would review the process we use to object. It always looks so cool on TV - the lawyer stands and announces "OBJECTION, YOUR HONOR, he can't testify to that!" You expect the Judge to immediately stop the trial, chastise the lawyer and affirm the objecting party. In real life trials it seldom looks so clean. We stumble and stutter and spew out "objection" just loud enough to be heard, but without the conviction that we know why we are objecting. Here are four basic rules I learned as a young JAG that might help you as you stand and deliver:

First - say the word. "Objection." Say it with conviction so that you can accomplish the real reason you are up in the first place - say it like you mean it so the witness will stop talking!

Second - give a legal basis for the objection. Not a treatise, just a rule will do: "Objection, hearsay."

Third - if you win the objection then you probably want something. How should the court fix whatever problem caused you to get out of your chair? Ask for a remedy. Ask the court to strike the testimony given before the objection, or to cure the problem.

Fourth - if you lost the battle, you many need to make a record by an offer of proof. Not on every little objection, but sometimes you need to protect that record for an appeal.

So there are the rules, courtesy of the United States Army JAG school, as best I recall. Hope they help you do it better if you do it at all. And that might just be the bigger question: When should you object? Let's save that for another day.

The answer to that is not as simple as you might imagine. A friend and mentor says that he has "not lost a jury trial in over thirty years." Really? No losses?

"Well, it kinda' depends how you define 'lost'!"

And that may be true, but what I have learned from that friend and mentor, and from watching some of the best trial lawyers in the land is that preparation is the key to success in court.

The difference is preparation. Period.

Not a Harvard education. Not having worked as a prosecutor, public defender, or judge. And certainly not having been in the courtroom for 20 or 30 years.

The key to success - whether that is winning outright or obtaining the best possible result for your case - is preparation. Preparation is time spent getting ready for trial.

So how can you help your lawyer get ready to win your case? Here are three ideas:

First - tell the lawyer the whole truth.

Second - empower the lawyer to spend the time he or she needs to get fully prepared.

Third - take his or her advice!

And if you are a lawyer reading this, remember that our obligation is to get ready for trial as best we can. If you don't have time for the client, don't take the case.

Now back to preparing for trial for me. One to go in January, another in February, and then three more later this year. Five trials may not sound like a lot, but getting ready to try those cases can take a lot of time.

How about you? Getting ready for trial? If you're a lawyer with issues you need to bounce off another lawyer, give me a call. Let's talk about your case.

If you have been injured by an Idaho state, county, or city employee and you want to bring a civil lawsuit for damages, you MUST file a notice of tort claim before you can bring a lawsuit to recover for your injuries. Even if the potential defendant is not an employee - you still must file the notice of tort claim to have a chance to recover money damages from injuries or death that resulted from a government employee or agent's negligence. The law in Idaho requires that the tort claims notice must be filed WITHIN 180 days of the date of your injuries. Again, if you do not file the notice of tort claims within that time, you HAVE NO RIGHT TO SUE.

If your case involves any of the following types of entities or their employees or agents, you will need to file a Tort Claims Notice before you can bring suit:

State office or department;

State agency, authority, commission or board;

State hospital;

State college or university;

County;

City;

Municipal Corporation;

Health District;

School District;

Irrigation District;

Special Improvement or Taxing District;

Hospital or Nursing Home established by a County or City;

Any other State or local governmental entity

There is no "form" that is required for your tort claims notice, but it must include certain information including the conduct and circumstances which brought about the injury; the nature of the injury or damage; the time and place the injury or damage occurred; the names of all persons involved; the amount of damages claimed; the residence of the claimant.

This is a very important requirement that you may not get right if you rely on your own understanding of the law. If you get this one wrong - you have no case, so get some help. Call a lawyer who has experience with this. I have had to tell that potential client that his right to sue under state law was gone because he had failed to file a proper notice of tort claim, and that was a conversation I will never forget. So get some help.

Just how do you address the court? What does your language tell the judge in that Ada County or Federal Court appearance? Whether you are a lawyer or a defendant, an expert witness or a plaintiff, the way you speak and the things you say can make a difference. Check out this video, it's hilarious, but sadly true. We seldom speak with the authority or conviction we need to convey in court.

The Sixth Amendment to the Constitution provides you with many of your most important tools at trial. It is intended to guarantee a fair trial to every person accused of a crime. Whether you are charged with DUI, a drug crime, a sex offense, fraud, manslaughter or murder, the Sixth Amendment helps us to get you a fair trial.

If you have been charged with a crime, we will be happy to meet with you to explain your Sixth Amendment rights and how they can help us defend you in your particular criminal defense matter.

So what does the Sixth Amendment provide? It provides you with these essential rights at trial:

You have the right to be tried by an impartial jury.
You must be informed of the nature of the charges against you.
You have the right to confront the witnesses against you.
You have the right to a lawyer.

You don't really want just any jury that might be impartial - you want a lawyer who can use his or her experience to choose jurors most likely to listen to your story, and jurors who will want to help you.

So the Sixth Amendment gives us a framework to defend you, but the key to your defense - your trial and your innocence - is the lawyer you choose.

Before you hire a lawyer who says he or she has the experience you need to face a prosecution - STOP. Ask that lawyer the five questions we have here. Then give us a call. For over thirty years we have been providing the best defense in criminal cases in state and federal courts.

What does it take for your simple assault or battery charge to be elevated to a crime of domestic battery or domestic violence? Not much. An act as simple as grabbing your live-in boyfriend or girlfriend by the wrist might be charged as a domestic violence crime. In Idaho, you don’t have to married to someone to be accused of domestic violence. All it takes is evidence that an alleged victim is a “household member.” Aside from a spouse, “household member” can include a former spouse, a person you have a child with regardless of whether you’ve been married or not, or a person who you cohabitate with. If you’re charged with a domestic battery or assault, not only could you be spending more time in jail, but you run the risk of being charged with a felony if this isn’t your first offense. A first offense domestic violence charge, whether a battery or assault, carries up to 6 months in jail and a $1,000 fine. A second charge within 10 years has a maximum penalty of 1 year in jail and a $2,000 fine. If you’re charged with a third within 15 years, that’s a felony. You face up to 5 years in prison and a $5,000 fine.

Domestic violence allegations are always treated differently than the average battery or assault. Alleged victims are generally taken at their word, often not interviewed to the extent that an alleged aggressor is. Police automatically assume you’re guilty and will treat you as such. They might cut corners in investigating the incident and you might never get to tell your side of the story. Once you’re charged with a domestic violence act, a judge will immediately issue a No Contact Order against you to protect the alleged victim. Until you get a chance to be heard by the judge, these orders generally prohibit any contact whatsoever. You will likely have to move out of your home until the order is terminated and might be prohibited from seeing your children for a while.

Police and prosecutors take this charge seriously, and so should you. This is not something you want to fight on your own. You need an attorney with experience who can tell your story. If you’ve been charged, give us a call.

When a police officer goes too far – and uses excessive force – he can be held accountable for the harm he causes. Police officers have a tough job. We rely on them to keep us safe, and most of the time an officer uses force it is justified. Still, if you have been harmed by the actions of a police officer, you may have a case. The officer and his or her agency may be responsible for your damages.

Holding a law enforcement officer accountable is not an easy assignment. The evidence must make it clear that the force used was unreasonable or unnecessary. For example, if an officer used a baton or stun gun on someone who was simply arguing whether he or she had been speeding, a case might be made that the officer had used excessive force.

Here are three things to keep in mind about your potential excessive force claim:

First, a law enforcement officer may use force that is necessary under the circumstances presented. So not every use of force will result in a case.Second, juries want to believe that law enforcement officers “did the right thing” when confronted with a tough situation. This means that you will likely start at a disadvantage when it comes to credibility, so your choice of a lawyer to handle the case is critical to your possible recovery.Finally, there are procedural hurdles designed or intended to keep you out of court and to limit your recovery. Do not wait to contact an attorney and review your rights as the passage of time may destroy any opportunity you have to recover.

To safeguard your rights, your lawyers need to build your case expecting to go to trial. This means that we will help you safeguard evidence, document your medical treatment, account for lost wages and employment, and identify and interview witnesses.

The Idaho Statesman may have said it best: "Amil Myshin fought for fairness."

He was simply one of the best lawyers I ever met, and more importantly, one of the nicest men to walk our streets. He inspired. He taught. He fought - boy could he fight.

The news that Amil had passed found me last Tuesday in Challis. I was getting ready to peddle day three of Ride Idaho when a friend's text message nearly dropped me. He was gone and most us had not even known he was ill. But then again, that seems so Amil - not letting on to the rest of us that he was sick.

Not long ago I was in trial and Amil was walking in the hall.

"How's it going?" he asked.

"Tough. I can't seem to catch a break this time."

"Comes with the job. Just keep trying."

I will. I will keep trying to do what you did, Amil - I will fight for fairness for our clients. I will try to pass on the lessons I have learned after twenty-five years, just like you did. And I will try to treat people like you did - with grace and humility.

In the world of "star justice," Roger Clemens' trial for lying to Congress started out looking like "must see TV." It quickly fell apart and the court declared a mistrial based on the failure of the prosecutors to play by the rules. Only six days into the trial, and on only the second day of testimony, prosecutors apparently defied a court order and presented prejudicial hearsay testimony the judge had already barred from trial. The judge specifically found that the government's conduct had placed the case in a posture where Clemens could not get a fair trial from the seated jury. But could he get a fair trial from another jury? Will the government get a second chance to convict the baseball superstar?

Clemens' defense lawyers have filed a motion to dismiss the indictment, claiming that Roger cannot get a fair retrial based on the government's conduct. The motion is 32 pages long and provides some great reading. Others have written about this in far greater detail than I can here, but the general principle to take away from the motion is this - you have a right to a fair trial in every criminal matter. A fair trial may include hard evidence, prejudicial witnesses and physical evidence that strikes a hard blow. Judges preside over criminal case to insure that the blows will be within the bounds of the law and that the parties will play by the rules. When prosecutors do not play by the rules, the court must step in and use its power to insure a fair trial.

In the Clemens case, the prosecutors permitted hearsay statements made by Clemens' ex-wife to be played to the jury despite a prior court ruling that prohibited them from doing so. The prosecution team had put together the video clips and transcript that were shown the jury - so even if they did not intend to violate the court's order, they had a duty to insure that the order was complied with. In other words, after spending millions of taxpayer dollars to prepare for trial, somebody should have reviewed that video and transcript to make certain they did not violate the judge's order.

After all - this million dollar fiasco is all about personal accountability, isn't it?

So now we await the government's response to the motion. We will follow-up on this as it develops.

Have you noticed how many attorney websites are all about the lawyer and pay no attention to the information that people charged with criminal matters are looking for? Most lawyer websites scream: "Hire me! Do it now! You might go to prison if you don't act within the next hour! Call me now!"

I hate those websites! Instead of providing information, the lawyers using the sites try to scare you into hiring them based on emotion, not information. The truth is you might not even need an attorney to handle your case. So before you sign that retainer agreement, get informed!

This blog is different. There is a ton of free information here for you to review based on your needs. Have a DUI case? Check out the DUI section of the Topics. Have a question about how to value a personal injury or wrongful death case? Look at the Civil Practice section.

The Topics section can lead you to information that you can use to help you become informed on whatever area of law you are interested in. Well, not every area - this blog is really about criminal defense, civil rights and civil trials. With over thirty years of experience in those areas, my goal is to help you become better informed!

And what if the issue you have is not listed in the Topics? Send me a question and I will get back to you. We promise to get you information - then you can make a great decision about whether you need a lawyer and which lawyer you want to hire.

I just finished two trials and am headed toward a third, next month. I am also working on this racketeering case in which my client is alleged to have engaged in racketeering activity as part of his membership in a local gang. With motions filing deadline approaching, I spent some time looking at recent cases in the area and this one, US v. Scott, seems spot on, but not so much for the motions issue, rather as judicial involvement in the trial. It is interesting because it illustrates just how much control a federal district judge may exercise over a trial and NOT violate a Defendant's right to a fair trial. First - my disclaimer - I have never seen any judicial conduct that comes close to this stuff, nor would I expect to. The case is interesting for us as lawyers because it reminds us that there is a long, long journey from what we think is unfair conduct by the judge at trial to a reversal of the case. So read the case - and consider the following from Scott:

The judge did not allow the jurors to take notes. No problem says the 9th Circuit. A judge has a lot of discretion with respect to the question of whether jurors can take notes.

The judge made disparaging comments about the defense lawyer. No problem says the 9th Circuit, even though it concedes that some of the comments went too far and may have been inconsistent with the standards of judicial decorum. Still, the court says that there was no real prejudice to the defense in view of the evidence. Let me translate: the evidence showed that the defendant was really guilty so no harm, no foul.

The judge gave the defense lawyer nine minutes to review and then object to the proposed instructions. Again, no problem. The proof that there was no prejudice to the defendant was the closing argument itself, which apparently went well.

The judge did not give a mutual combat or self-defense instruction. No problem here either as the evidence did not raise the issue. Could be - but the only defense available to the defendant (who was charged with stabbing another inmate) was self-defense or mutual combat, so the failure to get enough evidence before the judge and jury really rests with the lawyer.

The judge apparently asked a lot of questions of the witnesses. No problem here either says the 9th Circuit. Judges have an inherent power to supervise the evidence and even draw attention to important evidence. Still, this almost never happens in courts here.

I was thinking about what this really means in the context of our cases in state and federal court in Idaho. First, it is a good reminder that we need to be fully prepared to tell our story to the jury with sufficient evidence to raise whatever claim or defense we are asserting. If our defense is self-defense, we need to get the evidence in so that the judge cannot refuse the instruction. Second, we need to be fully prepared to present our case in a way that highlights the evidence so it is remembered. With each witness there must be one key point we want to present. That point must be so memorable that even without notes, the jurors will recall the point. And finally, we are really a lot better off than we sometimes imagine when it comes to the judges we encounter. I can't even imagine a judge in Ada County or the US District Court refusing to permit notes or trying to take over the case from counsel.

Want to help your case and your client? A friend of mine says the nicest lawyer in the courtroom usually wins. I think he is right. I'm willing to have the fight with the judge if needed, but it us usually better to not need the fight.

In the past six weeks, Courtney and I have tried two criminal cases in Ada County. The first case charged vehicular manslaughter - two felony counts. Last week we tried a case that charged aggravated assault with a deadly weapon and injury to jails (both felonies), as well as misdemeanor counts of false imprisonment, battery and destruction of a communication device (a cell phone). We picked juries in each case, and had the benefit of a jury consultant on the manslaughter case. As we have earlier reported in this blog, the jury in the manslaughter found our client not guilty of the felonies. Last week the jury in the aggravated assault case said not guilty as to the disputed charges (but guilty of the battery in the face of a self-defense claim), but guilty of the two misdemeanors our client had admitted committing.

So what did we learn?

In each case we approached the process of jury selection as one of inclusion, not exclusion. This is a Trial Lawyers College ("TLC") thing. Getting rid of folks from the panel is always tricky, even with a jury consultant, because lawyers are usually looking to "craft" a panel of jurors who are more likely to go their way than the way of their opponent. The problem with that approach is that we are not as "crafty" as we believe. So the TLC approach is different - start instead with your biggest fear in the case and work your way through this with the potential jurors. So we start by admitting we have potential problem areas in the case, and ask the jurors if they are going to be able to remain open to the balance of the case even knowing about the problems. We try to include folks by talking about the warts, and then getting the juror to open up about his or her feelings. Sounds all "touchy-feely" doesn't it? I think it works.

Let's consider the problem posed by a recent client's admissions that he had hit his girlfriend. Guy hitting girl equals problem. Growing up as men in society, we hear repeatedly a universal truths: "men don't hit girls." Period. Ever. So when we have a client who has done that - struck a woman - you need to talk about it early and often with potential jurors because it goes against this deep seated belief we have as men. We talk it out and see if the jurors can get past it and get to the issue that they must decide.

Of course all this talk about inclusion is in some ways just talk. At the end of the day the lawyer has to decide which jurors represent the biggest obstacle to a fair trial based on their answers and their experience. With thousands of dollars paid to jury consultants, I have never forgotten the words of the Hat - "experience trumps everything else." He is right about that. Any juror who has had an experience with domestic violence cannot help but have a predisposition one way or the other in a domestic violence case. If you can get them talking they will tell you whether they can serve fairly.

But back to the question - what did we learn?

First, we learned that the TLC process works to identify the potential trouble spots with jurors. Spence says that if you are willing to show the jurors your weakness (area of concern) they will talk about their own fears. I think that is exactly what happened in both cases. In the manslaughter case I talked about my fear that people might immediately conclude a person with poor vision has no place driving on the road. The jurors opened up about that weakness and talked through their perceptions. From that we made some inroads into building a relationship with the jurors. They understood that they could look to us for the answers in the case, and they could trust us to be honest about the evidence.

The second thing we learned was that having the jury consultant is a huge help but you can get past the benefit of that expertise by taking more preparation time for voir dire. Given my choices, I would always enlist the aid of a consultant, but even the best consultant cannot pick your jury. The lawyer is ultimately going to have to make the tough call about who should stay and who should go. The consultant I use always asks me what ONE question I would ask if I could only ask one. From that one question we need to be able to expose our concern to the jury and get them talking about how they feel.

Getting ready for trial? Worried about picking that jury? Get a copy of Gerry Spence's book "Win Your Case" and read the chapter on jury selection. That is a great starting point for the TLC method that consistently works for us.

If you happened to be on the planet Earth yesterday, you could not have missed hearing about the iPad2. "Thinner. Lighter. Faster." Steve Jobs is the master communicator and you can learn something here about your case if you are a lawyer or a client. Those words tell his story - "this thing is amazing!" Steve's choice of words can help us all be better in front of a jury. Here is my take-away as I am preparing for a month long trial that starts a month from now.

First - every story needs a simple "punch line" that is memorable and hits the heart. Remember Johnny Cochran in the OJ trial: "If the glove won't fit, you must acquit." They did. That line was so memorable that jurors later said it summarized the entire case. Work on this part of the case and come up with a memorable theme statement.

Second - use simple words. I sometimes have clients who want to talk about "the party of the first part," or who tell me an issue is "mute." I love that one - and it isn't just clients who don't get the "moot" or "mute" point. Steve Jobs delivers great messages with simple, real words. No jargon. We lawyers really do not get this point. Our audience (jurors) are used to hearing real words, not law words. So whether you are a lawyer or a client, keep the words real.

Third - get off your seat and practice, practice, practice. Jobs looks like a natural but those around him tell another story. That one hour presentation likely took twenty hours of practice. The problem here for most lawyers is that our clients do not want to spend money for us to practice. Given my choices, I would rather practice and get it right because usually, my client's liberty and money is on the line. Do not shortcut your case prep here!

So there we have it. "Thinner. Lighter. Faster." Not me after this week of vacation on my favorite beach. But what a great tag-line for the iPad2. And since I think the iPad is a great trial tool, the iPad2 is soon to join me in a courtroom near you. More on using Apple technology in trial in a later post.

Have you been preparing your story for trial? Got a killer theme and tag-line? Work it and get ready for trial!

I couldn't help but notice this morning that a judge on Wednesday postponed the trial of Roger Clemens "for three months" moving it into July. Not long ago I listened as the parents of a child who had been beaten up by classmates complained to the judge that it had taken entirely too long to resolve the case. And just last week, I had to ask to postpone a criminal jury trial in Boise until June in a case that I doubt will ever go to trial.

So why does this process take so long? Why can't we just get it done like they do on Law and Order, all neatly wrapped up in under an hour?

The answer is found in two words - due process. The underpinning of the criminal system is fairness - so the procedures that are in place to keep the trial on an even playing field require that everyone has time to adequately prepare. Get this wrong (go to trial too soon) and it likely results in a claim later that the lawyers did not "effectively" represent that defendant, leading to a conviction.

If you are in a case that you think is taking entirely too long, relax. It is so much better to get fully prepared than to wonder whether everything was done to preserve your freedom.

I occasionally (OK - often) mention Paul Luvera and his careful study of the business of trials. The truth is, guys like Luvera have been doing this stuff forever. Or so it seems. And with that experience comes wisdom. We all want wisdom. At least that is what I want to believe. I also believe we want to win as trial lawyers, and winning is not always the same thing as getting justice. But justice is just that - a concept; a feeling that makes us all go "ahh . . . ."

So here is something for you to consider, whether you are a lawyer or a person looking to win your case in one of this country's courts.

To win - we need to think more like jurors. So says Luvera, and that's good enough for me.

Jurors want to know what happened.

What does the plaintiff say? If you are in a criminal case - what does the prosecutor say happened? What is the defense? What does the plaintiff (state) want? In a civil case - who is paying? In a criminal case - how much time would this guy spend if we found him guilty?

And if it's a civil case - what is the money going to be used for?

Luvera says this is the stuff that the jury is thinking so we have to think about the same stuff and focus our case to answer their questions. I know it seems so logical, but we don't always do this. Or at least I don't.

The questions he suggests are actually more about the needs every juror has when they sit as judges in any case, whether civil or criminal. They take their roles very seriously. The need to feel like they have gotten toward justice - and that means we cannot avoid the big questions.

Here is one more. "Why didn't the defendant testify?"

That jury instruction that says the defendant doesn't need to testify is great stuff for lawyers. It simply does not ring the bell for jurors. Oh, I have won cases where my client did not testify, but I am increasingly worried that most jurors need to hear the defendant regardless of how smart I am, how persuasive I can be, or how weak the state's evidence seems.

So if you are planning your case, or a client's case, time to think like a juror. Stand back and ask yourself the tough questions about the case.

If you have ever been to a trial and watched the drama unfold, you likely know that it all comes apart like an old thatch roof in a windstorm when the jurors hear, then see, and try to interpret the jury instructions. It is true. Jury instructions confuse jurors, they seldom instruct them on anything.

After a trial a few months ago a juror reported to me that he did not understand why neither side had "proved intent." The instructions given by the court required the prosecutor to prove that the defendant committed an intentional act, but that requirement was the source of considerable debate and requests for further instructions.

And the fact that a juror thought the defendant had to prove anything is itself problematic. That instruction that said the Defendant had no burden of proof and was not required to present any evidence had gone nowhere.

Jury instructions tend to be confusing and mysterious. Usually in Idaho the court will instruct out of the pattern instructions that are approved by the Supreme Court. They do so to avoid giving an "unapproved" instruction that may cause a reversal. But the pattern instructions were created by lawyers - and as hard as we try - we cannot help ourselves! We cannot write simple instructions of the law because it is not simple. Consider the following "limiting instruction:"

"Evidence has been introduced for the purpose of showing that [Bad Guy] committed a certain bad act involving [Another Guy]. Such evidence, if believed, is not to be considered by you to prove [Bad Guy's] character or that [Bad Guy] has a disposition to commit such acts.

Such evidence may be considered by you only for the limited purpose of proving [Bad Guy's] intent on the day in question ..."

Huh? If Bad Guy committed a bad act, the jurors WILL consider it as a reflection of his "disposition to commit" bad acts, regardless of the instruction, IF THEY BELIEVE THEY CAN CONSIDER IT AT ALL. Truly we could do better. In at least one case last year a juror reported to me that they thought this instruction meant they could not consider the evidence at all. Now that is a limiting instruction!

This is not an indictment of the judges who give only pattern instructions or the lawyers who proffer them or the jurors who try to figure out what they mean. It is an indictment of all of us within the system who have failed to figure out a better way of doing this. We all use the pattern instructions because we give up on the prospect of having to do the work to create bright, meaningful instructions in light of the fact that they NEVER are given by the court.

Maybe I am sensitive about this today because I am drafting them again for another trial and I know that anything other than the pattern jury instructions will be left on the "cutting floor" in favor of the confusion we have created and foster by the Idaho Criminal Jury Instructions. And how can any juror be instructed on the law regarding the burden of proof and then tell me afterwards that they thought I should have proven intent? They could not figure out why I did not call my client to testify: "we all wondered about that."

They "wondered" about it even though they had been specifically instructed to "not wonder" out loud about a defendant who does not testify.

As a lawyer, I think I have decided that I must spend less time arguing the facts and more time on the stinking instructions. I need to go over them because when jurors ask for an explanation while deliberating, we are too afraid to engage them and answer the questions. I am guilty of this myself, offering the opinion that we should "just let them figure it out." The problem is they do not figure out the instructions.

So back to my proposed instructions that are due tomorrow. Somewhere in there I might try to provide an original instruction. Something that is easily understood. Something that actually does not confuse.

Thirteen months have passed since Ahmed Cepalo was killed outside Backstreet Billiards. Jeremy Hobbs was charged with murder and we commenced the trial of that case on April 12. It ended today with a hung jury. Mistrial. Do - over.

Jeremy remains in jail awaiting a conclusion to this case. I won't discuss it here as I continue to represent Jeremy. Someday we may discuss what I learned this time in trial. It was, like every trial is, an experience.

My great and patient assistant Patty had to take a little heat yesterday from a couple callers who wanted to talk to me about their cases. "Sorry but he can't take your call today." It was the absolute truth.

I know there is stuff going on out there in the world of criminal defense, but man - I am in the soup. Trial starts on Monday and there are not enough hours. So hang in there....

I am a huge fan of 37 Signals and their product line of mind-freeing, software-killing, reality-driven SOLUTIONS. There, I said it - SOLUTIONS. As lawyers, we tend to only see problems. Problems are meant to be solved, not lawyered, and sometimes we simply forget the value in achieving something. Recently I had a case in which my client was charged with a very serious crime. The certain outcome - at least it seemed so to me - was the end of his useful life. He would spend most of it in prison if the law had its way. And when prison has its way, well, nobody ever rehabs in prison, they just do time.

But somehow I was dealing with a prosecutor who had a different view of life. She thought the life we were about to grind up could be saved. That was what she decided to do. Recognizing that the law is sometimes an "ass" she came up with a SOLUTION. The kid's life will not end and he will pay a price but he will have a real chance, because we were able to look past the expected resolution and move toward something different. A solution.

I have been looking forward to 37 Signals' founders Fried and Hansson's new book - REWORK. Like that prosecutor, they have a way of coming up with stuff that is better. Stuff that works - or as they say - Reworks. We have used their Basecamp product for years, to keep clients better informed about their cases and in the loop at all hours of the day. Better than email - the messages function in Basecamp insures that your concern will get to me and my response will get back to you with the least grief possible. If you are a lawyer go check out Basecamp and think how easy life can be for you and that client. And you can post documents to the client's project for review without the grief of sending a fax or the worry of lost emails. No $6 faxes needed!

REWORK is full of great advice for all of us. Consider just this one take from the book on the truth about planning. It is guessing.

When you turn guesses into plans, you enter a danger zone. Plans let the past drive the future. They put blinders on you. “This is where we’re going because, well, that’s where we said we were going.” And that’s the problem: Plans are inconsistent with improvisation.
And you have to be able to improvise. You have to be able to pick up opportunities that come along. Sometimes you need to say, “We’re going in a new direction because that’s what makes sense today.”

We spend lots of time "planning" for trial when often it is the improvisation that settles, wins, and solves cases. I am not suggesting that we shouldn't plan for trial, but the truth is our best plans will likely leave us empty when we actually get to trial and the witnesses start testifying. The stuff you plan for may happen, but it is the understanding of the case - its facts and the law governing the facts - that will allow improvisation and solutions. The testimony you did not expect is the testimony that will sink your client's ship.

Make some time and read REWORK. We can learn to underdo the competition, ditch meaningless meetings and stop working so hard.

I had a really nice woman in my office today who wanted to hire me to be her lawyer in a felony case. Her biggest block was, well - money. She said she had been "hoping to avoid all those hearings" and thereby make it possible to hire me. Fewer hearings means less time spent on the case and less cost. At least that was her perception, and to some extent she was right. More work costs more. That simply does not change the reality of the court appearances in a felony case.

A person charged with a felony in an Idaho court will make a first appearance before a magistrate judge, generally after having been booked into jail on the charge. That first appearance provides the opportunity for the court to advise you of your rights, appoint counsel if needed and set or reconsider a bond that has already been set. The court will then set a date for a preliminary hearing - usually within 21 days. That preliminary hearing is a chance to see the evidence relied upon by the state to establish probable cause. If the State uses a grand jury and obtains an indictment, the right to have a magistrate judge consider the issue of probable cause goes away.

If the magistrate finds probable cause to believe you have committed a felony offense or if you have been indicted, your next appearance is before the district court judge assigned to your case for an arraignment. Usually your lawyer will enter a plea of not guilty, and the judge will set dates for discovery, filing and hearing motions, and perhaps a pretrial conference.

And of course there is the main event - the trial. The court will set that date too at the arraignment. Generally your trial date will be 90 to 180 days out from arraignment, depending on the complexity of the case and the trial court's schedule. If you need more time the court may grant a motion to extend the time to prepare for trial.

So there you have it: Felony Court Appearances 101. But the preparation of a criminal case is so much more than just showing up for trial. There are investigative reports to be read and analyzed and legal motions to consider. And of course there is the story.

The story is everything. Check out prior posts on the importance of telling your story.

More time does cost more money - but more time means "more prepared." More prepared means more likely to get it done at trial. And the trial is a war. I mean that. War. Battle. Fights. Blood and guts and throbbing headaches for you and your lawyers. Even if you do it all right you may still lose. I know it doesn't happen on TV but in real life it does - we lose cases we think we cannot lose and we win cases we think we are likely to lose. Often time spent on the case is the difference.

When I was a young JAG lawyer, the Army insisted on my use of this goofy phrase as I would call a fact or circumstance to the attention of a witness: "directing your attention to exhibit A, can you identify the item for the court." It had a nice "legal" sound to it and it was easy to remember. Candidly, it was somewhat better than saying, "hey - what is 'A?'" I actually heard that question asked recently in trial. I'll tell you what "A" is counsel!

We also learned the rules that we were never to break - as it relates to cross-examination the critical rule was simply this: never ask a question for which you do not know the answer.

Of course anyone who tries case does just that. Sometimes we get stung and sometimes we get lucky. The key to which happens is likely our ability to respond, not run.

This morning I was reading Paul Luvera's blog for trial lawyers and he has a great post about Irving Younger and the "rules of cross-examination." If you are a great trial lawyer or (like me) aspire to "goodness" you should read Luvera's post. Go there now and do it. Your life will be better.

If you are reading this and your are not a trial lawyer - go do it anyway. Your life will also be better. Lavera is one of the great ones - I count myself lucky to have learned from him at the Trial Lawyers College. He and Gerry are great friends and it is easy to see why. They both get it - they understand that the real people we represent and the real people on our juries expect authenticity and they want the truth. Running away from tough questions never wins cases.

Some day soon we will revisit criminal law. I promise. But for now it is off to work out. IMAZ looms ahead! What's ten months between friends!

Almost forgot about this one - Charles Hartman - pled guilty to sexual abuse of a minor in 2007. On January 13th a jury awarded his victim $1.9 million. Boise lawyer Walt Bithell represented the victim, who was 16 at the time she was molested. Speaking about the role of the civil case:

"The civil case is designed to do what the criminal system won't do - try to make the family whole. You cannot believe the impact on the victim, and the victim's family," said Bithell, who said in 40 years of practicing law he can remember only one other time when a family pursued a civil judgment in a sex abuse case.

The unanimous jury awarded $1 million in punitive damages, and the balance ($921,000) to cover general damages, counseling and the damage to the family relationships. Although most offenders go to prison and have no money to provide for their victims - that is not always the case. Hartman reportedly has business and real estate that might provide a way to recover the verdict.

So what does this say about the state of justice in Idaho? First, it is possible to win a jury verdict in a civil case that seeks compensation for crime victims. Bithell is a legend here - great trial lawyer and a great man. And Walt had the things you need to win: liability AND damages.

Second, those "run away" verdicts are urban (and country) myths! The jury awarded $1.9 million - not $99 million - like those insurance companies would have us believe. They and the legislature have limited the amount of money a victim can recover in most civil cases supposedly because Idaho juries are not "reasoned" (OK - insert the word "smart" if you dare) enough to sort out real damages from the imagined. Nonsense. Idaho juries, and juries in virtually every courtroom across the land, have a better grasp on what is real and what is imagined than do the insurance fat cats. Think AIG would get those monster bonuses if a group of 12 jurors got to decide?

Third, to win a case like this you have to be willing to try the case. That goes for the client, family and lawyers. Defendants are not going to hand over $1.9 million without a fight, so put on the gloves and get to it. You need a gladiator for your case, and the will to see it through. And trust the jury to get to the truth.

When I was at the Trial Lawyers College I met Daniel Rodriguez - a mild mannered civil rights lawyer from Bakersfield CA. He showed me there that he was simply one of the greatest story tellers in the class and undoubtedly one of the great trial lawyers in the country. He has a home town style that quickly captivates those around him.

He also just won the biggest verdict in California history for a drunk driving case - $31 million.

So how did he do it? Here are a couple things that made his case so compelling:

First - his clients had real damages. His primary client had brain damage and will need constant care for the rest of her life. So there were huge sums of money that will be needed to keep 19-year old Rosie Landros alive. Real damages make a real difference. So often we have potential cases where people are hurt, but seldom are they as severely hurt as the victim here.

Second - there was real liability. The driver of the other car had pled guilty to driving under the influence of alcohol (DUI). When liability is established, the only question is how much the victim is entitled to for damages and there is no issue of contributory negligence.

Third - THERE ARE NO LIMITS FOR NONECONOMIC DAMAGES IN CALIFORNIA - or Wyoming, or Montana, or Texas or a whole bunch of other states. So pain and suffering has real value in those states. In Idaho the insurance companies convinced our state legislature that juries award too much money for pain and suffering, so WE HAVE A $250,000 limit or cap on noneconomic loss. Our pain is not worth as much as the pain suffered in neighboring states.

And those same legislators clamor for tort reform while taking money from those insurance companies and their lackies.

Here's an idea - let's throw them all out of office and start over. Then we the people can restore to us the same rights we would have if we were injured in a neighboring state.

Want to read more about this case? Check out the newspaper account here. And congrats Daniel. From a class of pretty good lawyers at Trial Lawyers College, you again showed us that you are the King!

Reversing a conviction for rape this week, the Idaho Court of Appeals reminded all of us that the system works when the rules leveling the playing field are enforced. That applies to defense lawyers and prosecutors alike. As Judge Gutierrez noted: "While our system of criminal justice is adversarial in nature, and the prosecutor is expected to be diligent and leave no stone unturned, he is nevertheless expected and required to be fair."

So the case of State v. Troutman takes another turn down the road of justice. Noting that a "fair trial is not always a perfect trial," Judge Gutierrez finds that the error here interfered with the right to a fair trial and results in giving Mr. Troutman another day in court. If you are facing any criminal charge, you need to read this case. Go do it now.

The decision is a great reminder of the complexity of criminal trials, and it reminds me of the following THREE TRUTHS about the criminal justice system.

FIRST TRUTH - every lawyer in that trial has duties that he or she must oblige. Judge Gutierrez noted the prosecutor's duties to the people of the state, including the duties to the defendant. Hard blows are fine in the courtroom, but they must be fair blows. Mischaracterization of the evidence or the defense theory is not permitted. And mischaracterization is so easy to do in the heat of the battle in the courtroom. We are advocates in there, fighting for our client, and the fight gets hot sometimes and it is largely unscripted. When I read something that I have written here and reflect that it goes too far or misses the mark, I simply correct and re-save. There are no "re-do" buttons in an argument before that jury, so remarks need to be carefully considered. But none of us - not the best lawyers I know (Nevin or Spence) nor the best prosecutors for the State or the United States (hard to choose here) - none of us - gets it right everytime. We make mistakes and we fight too hard. In closing arguments we get going a hundred miles an hour and turn facts into stone when really the world is far more mud than rock. I won't cast stones at the prosecutor here, and neither did the Court, for I too have taken arguments at trial too far.

But the difference is critical - and the SECOND TRUTH - prosecutors have a higher duty than simply fighting the good fight.

"The role of the prosecutor is to present the government’s case earnestly and vigorously, using every legitimate means to bring about a conviction, but also to see that justice is done and that every criminal defendant is accorded a fair trial."

When I get it wrong in pursuit of an acquittal I may affect the outcome of the trial, but my duty rests solely with my client. The prosecutor must temper his or her role in the battle against a higher calling - to make sure every defendant has a fair day in court. Maybe this decision will cause prosecutors to stop and reflect on that duty as they go about their duties.

The THIRD TRUTH is that sometimes you need that review by another judge or higher court to save the day. As I said above, lawyers often get it wrong in the heat of the battle, and there is no immediate review as in a football game. We don't go to the referee upstairs with instant replay for a quick review. Judges sometimes get it wrong too. Here the appellate court thought the trial judge failed to adequately protect the defendant's rights. It happens. Thankfully the Court of Appeals was there to review the case and make it right.

So what does all this mean to you as a criminal defendant heading to trial? Get the best lawyer you can afford. Let your lawyer work hard to win your case. Trust him or her but remember - something will go wrong at trial. It always does. Hopefully your judge will catch it but maybe not. So be prepared to fight to the death to clear your name. And hope for one of those appellate miracles if that is all there is left to hope for.

In a decision handed down on December 30, the Idaho Court of Appeals vacated a conviction for robbery in State vs Faron Hawkins because the district judge did not sua sponte (on his own without a motion from the defendant) order a mental health evaluation during the trial of the case. Hawkins had contacted an FBI agent concerning his fear for the safety of his sons who were in prison in Colorado. The agent told Hawkins he could not help, but offered to put him in touch with another agent. The following day Hawkins robbed a bank in Portland, and an employee identified him. The FBI agent he had contacted tried to locate Hawkins without success, and 6 months or so later he robbed another bank, this time in Boise. As he left the bank he told tellers his name and said the robbery was "all because of George Calley (the FBI agent)."

Fast forward to trial. Hawkins has proceeded pro se, but a public defender is acting as standby counsel. Hawkins and the public defender do not get along. Hawkins fires him, then later asks that the PD argue his post trial motions - including a motion for a new trial because Hawkins says he was delusional. At the hearing the PD says that if he was going to argue the motion, he would have to argue that it lacked merit. So the lawyer says his client is not delusional (impliedly) and the court orders a mental evaluation for the purpose of sentencing - not for the purpose of determining whether the Defendant could have assisted in his own defense at trial.

The appeals court says that there were plenty of reasons for the trial judge to have ordered - before trial or during - a mental status evaluation, to see if Hawkins could assist in his own defense. Case reversed, start all over folks. The decision as to whether to order the mental status evaluation is one of discretion as to the trial court, and here, there was an abuse of discretion when viewed in the totality of Mr. Hawkins' bizarre behavior and representations (for example, he claims the government implanted a chip in his ear and controlled his thoughts, he claims he worked for the CIA).

Two things I take away from this case:

First - if the defendant acts like he has mental issues, the lawyers and judges need to take a time out and get an evaluation. Strange behavior comes from somewhere and everybody needs to know where before spending days in trial. Stop the bus and get a psych eval!

Second - the US Supreme Court held that the test is different to determine competency when the defendant is represented as opposed to proceeding without counsel. To spare all the details, the test is understandably more rigorous if the defendant is pro se. So the judge has to be more attuned to the bizarre behavior and make the tough call. That is why he/she has the black robe and the impossible hours and caseload. If the court fails to order the evaluation, the right to due process is violated that the case gets reversed.

And this says nothing about the conduct of the defendant's advocate. We are advocates - and the mentally ill make that job extremely tough. Still, we have to work on their behalf. Make their argument. It might be a winner!

This week I am in trial preparation mode and only this morning checked my email for the past five days. In my email I found a post to a blog written by Trial Lawyers College great, Paul Luvera. Luvera is a master of the game and a wonderful teacher. If you are a lawyer reading this, go to his blog and learn from his years of experience. Today's message from Paul - entitled Random Thoughts - begins with a quote from Shakespeare's Hamlet:

"When sorrows come - they come not single spies - but in battalions."

He goes on to point out that "nothing ever goes the way it is planned or expected when it comes to trial work." Like those sorrows, our cases tend to unravel first by a thread and then by the entire cloth. We need to keep focussed on our end game. We need to keep working toward resolution of the case, preparing to win while recognizing that something will come undone - and then something else. When that happens we look at ourselves and question whether we have done enough for the case and for the client. That's where those sleepless nights come in - over and over again.

In a recent case I had that eleventh hour complication every lawyer fears. Some little fact the client had left "unsaid" until the night before she was to testify. That "little gem" would have given the prosecutor the door to run a train through our case, so we decided to not call our client to the stand. That created additional problems because in opening I had told the jury they would hear certain testimony which seemingly could only come from my client. Not a single problem, a battalion of problems created because I did not have the "whole" story. The client had not trusted me with the entire truth.

So how does a criminal defense lawyer, or any other trial lawyer handle this type of problem during trial of the case? You've gotta' be quick on your feet. And even then, you may not recover. It is better to know all the case before, than get to trial and discover that one fact that betrays you.

Off to meet with a client. Luvera has inspired me to talk in ernest with him about that one little spy in the case. Seems almost certain to me that there is a battalion out there waiting to attack my flank if I am not fully fortified in my defense, and experienced trial lawyers know that preparation is the only fortification we have. F. Lee used to say "the defense is never ready, enough."

If you are a lawyer with a "spy" problem - send in a comment and start a discussion here. How do we best prepare for the coming battalion?

If you are have a legal problem, do the same. If I can't help, perhaps I can put you in touch with someone who can.

In a year that I have not found myself in trial that often (only one other time), I am happy to report that I heard those words again on Friday - Not Guilty, Not Guilty, Not Guilty, Not Guilty and - Not Guilty. The case involved fish and game violations and my client, an Outfitter whose very life depends on his ability to take paying clients in search of big game, was tried by jury in Challis. After the state concluded its evidence the Judge granted motions for judgment of acquittal on four of five counts. The jury finished the matter up by acquitting on the only remaining charge. Let me share a couple things I learned again from this case:

First - you have to believe in your client and his or her case. A friend of mine says that you can't ask a jury to do something you won't do. Translated - if you don't believe in your case the jury won't either.

Second - take your time in trial and tell your story. It is all about that story, and if rushed, it may not make it to the jury as you intend it. So slow it down. Let the jury take it in and think about it. Let them spin it and examine it and in the end, the story will be the thing that makes it work.

Third - make sure you know the facts. Know the case better than the other side.

Now - with the year to finish and two more cases headed for trial before years end, I will hunker down and keep reading. The fact that only two of my cases have gone to trial this year is not a bad thing. Some cases were settled under situations that brought value to the clients. Two were dismissed and another two more - felony cases that alleged armed robbery - resulted in a dismissal of the felony counts and pleas to simple misdemeanors. Some years are like that - and next year might result in more or fewer trials.

Have a question about a case? Send a comment or use our contact sheet. Calls this week are not likely going to get returned because I am, again, in trial.

In United States vs Hickey, the 9th Circuit Court of Appeals affirms the conviction of another real estate developer who made big promises to investors but failed to deliver. Defendants Hickey and Tang induced over 700 investors to invest over $20 million in two real estate developments. The plan was straight forward enough - you give me money, we buy land and develop it for resale at a profit. You profit too - just trust us. As I mentioned, investors dumped money into the "development" as they often do, even in Idaho. As the Ninth notes:

As it turned out, however, the investors were duped by false representations regarding land title, guarantees, and securitization of the funds. Forensic accounting also showed that Hickey and Tang appropriated money from the funds for personal use.

What a shock! Real estate developers who made false representations about owning the land, "guaranteed" returns to investors and security of the investments? And then they used some of that $20 million for themselves? The scheme ultimately turned into the classic Ponzi scheme, leaving later investors empty. OK - enough of my shock and horror.

The interesting issue for me was the Court's holdings concerning the use of an expert witness to testify that all of this was reasonable and the standard course of such proceedings. He wanted to go further and testify that if Defendants had not been stopped, their efforts would have produced a return for investors. To that the Court said "NO." Here is the part that I do so love:

To begin, loss to investors is not an element of either mail fraud or securities fraud, nor is an intent to cause loss. See United States v. Utz, 886 F.2d 1148, 1151 (9th Cir. 1989) (for mail fraud, “[i]t is enough . . . that the government charge and the jury find either that the victim was actu- ally deprived of money or property or that the defendant intended to defraud the victim of same.”) (emphasis in original); United States v. Benny, 786 F.2d 1410, 1417 (9th Cir. 1986) (actual loss is not an element of securities fraud). Although Hickey is entitled to advance the claim that he did not intend to defraud the victims, his argument misunderstands the relevant intent—“[w]hile an honest, good-faith belief in the truth of the misrepresentations may negate intent to defraud, a good-faith belief that the victim will be repaid and will sustain no loss is no defense at all.” Benny, 786 F.2d at 1417. In other words, even if Hickey genuinely believed his investment scheme would be profitable and would result in gains for his investors, he would still be guilty of securities fraud and mail fraud if he knowingly lied to investors about the risks associated with his plan.

What this means to you as an investor is simple - it is not a defense that the defendant thought ultimately his lies to others would produce profits for you and others. It's the lies, half-truths and omissions that make it fraud. That someone actually lost money is relevant, not the half-hearted and misguided attempt to prove the defendants "might" have made the money they promised as guaranteed returns.

That this is a criminal case changes nothing - the basic elements of fraud (civil or criminal, securities or otherwise) are essentially the same. This is a very important case for a plaintiff or a defendant in a civil or criminal case. These situations almost always ultimately involve both civil and criminal liability.

So if you think you have been defrauded, or if someone (like a government agency or prosecutor) says that he or she is charging you with fraud, get some good legal help and get it quick. Last week a guy called me to talk about a federal indictment which he claimed was "no big deal - I have been talking to the feds about this for the past year." Another excellent idea - after you commit the fraud, spend a lot of time with the feds trying to talk your way out of it.

No Mr. Defendant, this is no big deal alright - if you like tan jumpsuits, Club Fed accommodations, dark dank holes and lots of time to read the classics while carefully watching your cellie's next moves! No big deal at all - number 7651991!

No big deal either "Ms. Moneybags are now empty." Not if you don't mind giving back everything you own and want to spend the rest of your life working to pay off that non-dischargable debt for a couple cool million dollars.

First the disclosure - I have known John Tiemann for twenty years and when he was involved in an automobile accident several weeks ago he called me. I represent him. If he is ever charged with a crime as a result of the accident, I will be there beside him as his lawyer. The accident happened on August 19th, and two equally wonderful people were killed. John was driving his car to work at the same time James and Mary Woychick were on their way home from Mass. They were well known and loved by the community and their deaths were tragic. While I did not know them personally, I had seen Jim at the YMCA as I tried to learn to swim. He slid through the water without effort.

So when I opened the Idaho Statesman this Sunday to read the report that John had tested positive for alcohol and drugs, I knew there had to be something wrong. John had assured me that he had nothing to drink that morning, and the idea that this gentle man was under the influence of drugs was equally ridiculous. I knew that if he had failed the field sobriety tests or the breathalyzer he would have been arrested on the scene. He did not fail either and he was not arrested.

So I wondered about the basis for the claim by the Statesman - their answer - the Idaho Vehicle Collision Report.

The problem is the Report does NOT say John was positive for either alcohol or drugs. It says that he was given a blood and urine test and that the results of NEITHER is known. In other words - the story is false. The Report does NOT say that John Tiemann tested positive for anything. The reporter, Cathy Sewell, did not apparently understand the Report. When it said "-U indicates Unknown" she apparently thought that meant "-U indicates he was drunk and on drugs!"

In fairness to her, the report contains a "block" for "Alcohol / Drug Involvement" that indicated both blood and urine tests had been done. The results are not back from the lab - but I am convinced that John was not operating the car under the influence of either drugs or alcohol.

I have asked the Statesman editors to correct the story. Some of John's closest supporters had doubts. Had the Statesman simply waited for the results, the truth would have been known and not misreported. They say they want to make it right. I hope they do. I have simply asked them to do what is right - admit you got it wrong.

It must have been even more terrible to be in the Woychicks' family, which has endured so much with the loss of James and Mary, to read that story on Sunday that the driver had both drugs and alcohol in his system at the time of the accident. Someone last week told me that the Woychicks' children were trying to not hate the man who collided with their parents.

The Statesman undoubtedly made that worse without any reason to do so.

Like I said, I have known John Tiemann for twenty years. He says the lab results will prove he had neither drugs nor alcohol influencing his driving that terrible morning. Even if I did not believe him I would wait to see the test results. The Statesman should have done the same. But I do believe him, and I want to believe the Statesman will correct the story.

In an article appearing online in the Statesman it appears that DBSI president Douglas Swenson will have to answer questions under oath in the DBSI Bankruptcy case now pending. Here is the classic dilemma - answer the questions and face the use of your testimony in an all but certain criminal case, or refuse to answer and invoke the constitutional protections afforded against self incrimination and watch the civil case wilt on the vine. The law is difficult in such cases because DBSI has sought PROTECTION against its investors through the use of the bankruptcy courts. But should it lose the protections afforded there because its president wants to shield himself personally from a potential criminal case?

You can smell the blood in the water here - just look at some of the comments added to the Statesman story. Many in the community have tried and condemned DBSI and its officers without having any real knowledge of what went on in the business. And of course DBSI has added to the problem by appearing to run from its losses without giving a full accounting of what happened, under oath.

If DBSI wants the protection of the bankruptcy law, it must likely play according to the rules, but can the judge FORCE Swenson to testify under oath? I doubt it. The remedy here may be that the bankruptcy petition is dismissed or the case converted to a liquidation, thereby depriving the company of the protection of the courts because its president cannot or will not answer the questions.

Learning point - if it looks like you are about to be charged with a crime, you only want to tell your story once. If Swenson is indicted his statements in the bankruptcy would certainly be used against him at a criminal proceeding. So why should he waive his 5th amendment rights now?

Second learning point - when in trouble, get a good lawyer. Swenson has Angelo Calfo - great lawyer and a great choice in this case. We shall watch this one as it progresses. There is still that "ponzi scheme" claim underlying the entire DBSI mess. Millions of investor dollars are gone and in today's climate that can only lead to more scrutiny.

On a day when Canyon County Prosecutor John Bujak announced that his office had taken over the contract to provide "prosecutor services" to the City of Nampa, his office also announced that it had charged a 15 year-old girl with tricking another girl into sending her a nude photo, which she then distributed to other students at her high school. The un-named juvenile is now in detention and faces a possible maximum 90 day sentence in a juvenile detention facility as a result of her "sexting." For those of us not hip enough to get that term - it has come to describe sending sexual pictures over cell phones - as in "texting." Most kids caught with sexually explicit pics on their phones get into a diversion program (not a criminal case) - but this case involved a girl who tricked another girl into sending her the nude picture, for the purpose of sending it on to others. It was that intent to injure and embarrass the sender that led to the charges.

So did the Canyon County Prosecutor get this one right? Seems like it to me. Kids do all kinds of stupid stuff that has to be illegal based on some state, federal or municipal law or ordinance - but this one is kind of a no-brainer. If you trick someone into an embarrassing situation involving nude photos, you can't be heard to complain that it isn't fair. The real danger here is the feds - if they suddenly decided to charge kids for distributing child pornography (if the nude kid is underage) there would be huge problems for that kid. Not suggesting that will happen - the feds are (at least in Idaho) usually thoughtful about such charges. Sounds like John Bujak was this time too.

So John - what about that other kid? The 14 year-old kid still locked away and charged with first degree murder? The kid you initially locked up as an adult in an adult jail. The baby-faced kid who, it seems, was likely just trying to defend himself and his siblings from a man who had molested him.

What about Zachary Neagle?

And why is a Republican "less government" guy EXPANDING his domain to include providing prosecutors for Nampa? Sounds like you already have a full time gig. Why add to your responsibilities? What is in it for the people of Canyon County who elected you to be their FULL TIME prosecutor? After all - you are now responsible for the lawyers who prosecute the Nampa City cases too.

If you live in the Boise - Nampa - Caldwell, Idaho area you cannot have escaped the most recent news story on another apparent homicide by a fourteen year old Caldwell Middle School student. That's right friends - 14. As in "how many kids can you stuff in a VW Bug?" Fourteen - if they are little Middle School kids. As in two years older than 12. And when the reports first surfaced in the local press, it was just another "bad kid gone horribly wrong" tale, this killing compared to other murder by adolescent kid accounts that have played out all over the land over in recent years. You know the type - sad, dark killer takes life of sainted parent. Those stories are truly tragic - but this is not that story. This is the other type of tragic -

Zachary Neagle is charged with killing his dad - who "allegedly" had sexually molested Zachary and his sister.

Check out today's coverage of the case, including this story describing the circumstances this kid was living through - sexual abuse by dad. Here's the kicker:

"A close relative of the victim told investigators he suspected Jason Neagle sexually abused Zachary and that he had seen Neagle hit his son, (Investigator) Crawford said."

What kind of relative stands by and lets an adult sexually and physically abuse his kids? What kind of father molests his kids with apparent impunity?

While we are at it - what kind of prosecutor charges first degree murder for this kind of thing? John Bujak has "taken the death penalty off the table." Wonderful - at least this 5 foot 4 inch kid will not have to face the most extreme punishment available under the law. Bujak should do more - he should drop the charges based on the work of his investigators who appear to have the explanation - the kid was trying to protect himself and his sister. This kid needs help not a life sentence.

There is much interest in this case as the 85 comments to the story illustrate. Many (if not most) support the kid's actions to protect himself and his sister from the abuse. Zachary Neagle is the real victim. He needed the community's help before and he needs it now.

There are cases lawyers just need to take - causes so just they beg for an advocate. This seems like that type of case.

I love to read other criminal defense lawyer's perspective on what we do. So as I am waiting out big winds here in Maui, I just read a great post involving legendary criminal defense lawyer Roy Black and his defense of auto racing superstar Helio Castroneves - who fought the man and won! Check out the post here.

Here's Roy Black's take on our role as criminal defense lawyers - in Florida or in Boise, Idaho:

"...we defense lawyers are counter-punchers. The government always goes first and usually gets all the good rulings from the court. We had some tough days during the trial but our team never lost hope and just kept fighting back. So despite how dark things might look we should not give up."

Back in the office next week - but if you want to talk about a case just send me a post. As I said there are big winds here this week, so I am relaxing and reading cases.

In an article on the Idaho Statesman website today, we learned that the State has cut a deal with a truck driver who killed two people when his big rig bashed into a stopped passenger car. The deal - driver gets a couple MISDEMEANOR counts of vehicular manslaughter. Read the article here.

The driver, Gregory Roberts, killed Boise residents Jeanette Neil and Roy Valpey. Prosecutors say that they did not feel there was evidence of criminal negligence - the mental state required for a felony charge. But Neil and Valpey were sitting in traffic in a construction zone in their Hyundai when Roberts hit them and crushed their car. No proof of gross negligence? Isn't that what juries are for? If the prosecutors had put on their case and a jury had returned a misdemeanor verdict I could understand - but prosecutors charge felony DUI every day, without so much as a thought about the level of culpability.

I know I should feel like this is a good thing, as a criminal defense lawyer I am always trying to get this type of treatment for my clients. But as I said - Big Rigs Kill! Our focus this year with Gerry Spence's law firm is to try and "drive" home the dangers posed by too much speed and inattention at the wheel by truck drivers. Check out that post here. And slow down - the life you save may be your own.

Twenty-nine years ago my favorite prosecutor burst forth mightily. Noisy then and today, we named you Courtney because we knew then that someday you would do what you do. Happy birthday Porkchop! Hope this last twenty-something birthday is a great one! All our love. Next up - thirty-something!

In a real estate and mortgage fraud case, a former Boise mortgage loan processor for Zion's Bank is headed to prison for 18 months following her entry of a guilty plea in federal court. Barbara Cobos pleaded guilty to defrauding lenders and borrowers both, by a scheme in which the true ownership of real property was disguised and construction advances were made without work having been completed. Another Defendant - Chris Upchurch - who was a local Boise builder and developer has also pled guilty and will be sentenced next week. Sources close to the case say he too will go to prison - likely for more time than Cobos received. How much time? Could be twice that amount or more. Two other defendants also were charged and have plead guilty to fraud related crimes.

This may just be the beginning of the real estate and banking fraud cases in our part of the state. Like Bernie Madoff, there were apparently plenty of folks who lied and cheated their way to fortunes. There will also be some folks caught up in these investigations who are INNOCENT! If you find yourself in that situation - get an attorney BEFORE you talk to the investigator. An experienced criminal defense attorney can help guide you to safety and perhaps avoid criminal charges.

It is early on a Sunday morning and I am in my office working. Sometimes this happens - I wake up and after fifteen or twenty minutes I know that I am not going back to sleep, so off I go to do a little work. Today I am listening to a tape recorded "interview" by a detective. The suspect is charged with a sex crime. The officer has been nice and comforting along the way - taking his time to eke information out of the defendant - and in the end the defendant has sealed his fate. He has told the officer that he fell in love with a minor, and that of course led to sex, and that will lead ultimately to a criminal case. Sex crimes are in the news here lately, as a prominent local business man is currently on trial for having a sex party with two minors. I am not going to talk about his case - I did that under oath as a witness last week - but the question of just when it is permitted to have sex with a minor is frequently one I deal with. The answer is - drum roll please - NEVER! That's right friends and neighbors, not ever.

The law in Idaho FORBIDS a minor from consenting to sexual contact. Simply stated: a minor (someone under eighteen) cannot legally consent to any sexual contact. Idaho Code § 18-1508 prohibits "lewd conduct" with a minor under 16 years of age. Penalty - LIFE. And truly they mean it. You may not go to prison for life (you might), but your life will forever be changed if convicted. In addition to prison, sex offender treatment, victim restitution and lawyers fees, there is also a requirement that you REGISTER as a sex offender under Idaho Code § 18-8301 et. seq. If the victim of the crime is 16 or 17, it is still a crime if you (as the defendant) are more than five (5) years older than the victim (Idaho Code § 18-1508A), and the maximum term of imprisonment is twenty-five (25) years.

So if you are being investigated for any sex crime remember that the investigators are playing for keeps. Here are my top three rules if you are under investigation for any crime:

1. Guilty or innocent you cannot talk your way out of the investigation, so shut up! Remember that little "you have the right to remain silent" talk BEFORE the nice officer gets you the coffee. Sure, you may be guilty and there may be a time to confess, but don't do so at the station to the officer who says he just wants to "get your side" so it can be included in his report to the prosecutor. WAIT. Breathe deeply and tell him you do not want to make a statement. There will be plenty of time to spill your guts later.

2. The prosecutor is not your friend. I know prosecutors, and like many of them. They are almost always believers in what they are doing, sometimes to a fault. The same is true of most defense lawyers. Heck, my daughter is a prosecutor. But as one of my clients says, prosecutors are just cops with nicer suits. They are there as the state's lawyer in a case in which your liberty is very much at risk. Do not expect a break from the prosecutors. They may decide that you are a nice person but that will not be enough to convince them to "overlook" your indiscretion and dismiss the case.

3. You know that money you saved for a rainy day? Get it out and buy the best lawyer you can afford because "it's pouring" outside. Again this week I had the call from a young woman who is looking for an appellate lawyer because her husband is on his way to the big house. Who was his lawyer, I ask. He had a public defender, she says. "We decided to wait and see how the trial went before spending our own money." Bad call. That public defender may have been great, but he also may have had 60 - 80 cases he was managing. Money buys time - which is why I am here at 6:00 am on a Sunday morning. Time is the difference between winning and losing, sometimes. Sometimes there is nothing the best lawyers can do to get you acquitted. For example - if you are guilty of doing whatever they are investigating. But your money can buy that lawyer's time and effort to review the documents, learn the case, get to know you and your life and convey "you" to a judge or jury. I may not be the right lawyer for your case, but somewhere there is a lawyer who will work for you - maybe just to lessen the time you face - hire the best lawyer you can afford.

There you have it - back in the saddle again and now it's time to get back to work. Next time - what do we do about the confession?

So it's time to look back at the past year or so and consider how our clients did when they pushed their cases to trial. The names have been changed to protect ... you know the drill. Simple pleas without reductions are not included.

State vs KA - Lewd Acts with minor under 15 dismissed, pled guilty to child endangerment. OK - not a straight up win in the "NOT GUILTY" sense, but our client will not have to register as a sex offender, and should be able to get this case further reduced after serving his probationary time.

State vs CL - MURDER charges DISMISSED at prelim hearing, case proceeded to trial on involuntary manslaughter. Client found guilty of involuntary manslaughter and sentenced to 120 days as condition of probation.

US vs PK - NOT GUILTY of conspiracy to traffick in counterfeit goods, but guilty of selling counterfeit goods (t-shirts). Client spent 30 days in confinement as condition of his probation.

State vs DW - Client found NOT GUILTY of Manslaughter. The charge went to trial after the court DISMISSED the MURDER charges initially brought by the state.

State vs CS - Felony DUI case proceeded to trial, client had BAC of .24 / .26 (ouch!). Tough case for us but client wanted his day in court, found guilty.

State vs MA - NOT GUILTY of malicious injury to property.

US vs EO/JO - cases not indicted, alleged real estate and banking fraud. Imagine this - we actually had one of them give testimony before a federal grand jury!

Over all, not a bad year. Every case is different, so if you want to discuss your case, give me a call.

A bank can be sued for failing to conduct a reasonable investigation before initiating a criminal complaint against an identity theft victim. In an unpublished opinion out of New Jersey, the appellate court reversed an order granting summary judgment to the bank, and held that the main issue - whether the bank had acted with malice in calling the cops on the victim, was a matter for the jury to decide. The bank had opened an account with a $25 deposit from a man who had a State identification card that misspelled the name of the city, described a person who was nine inches taller than the victim, and did not identify his actual employer. A fraud investigator did a minimal investigation, and then filed a complaint on behalf of the bank against the victim. The real bad guy ran up $9,000 worth of bad checks, all against the victim's credit, largely because he had the victim's social security number and the fake identification. Victim spent 13 days in jail, and when a real investigation proved he had not opened the account or written the checks, the case was dismissed. Victim then sued the bank which had reported that he had created the false account and written $9000 worth of checks. The trial court dismissed the case, ruling that there was not proof the bank acted with malice. Malice in this context is not "bad will" but rather the doing of an intentional act. Here's what the court said:

The kind of malice I speak of means the intentional doing of a wrongful or unlawful act without just cause or excuse. Such malice is an intentional act which an ordinarily cautious man would realize that under ordinary circumstances damage would result to one's person or property, and which does in fact damage another's person or property. The element of malice may be inferred from a lack of
reasonable or probable cause.

Back to the drawing board for the bank which should simply pay this guy for his grief. They did virtually no investigation, and as a result, he spent 13 days in county jails trying to "prove" that he was not the person who stole from the bank. I love the fact that the "expert fraud investigator" hired by the bank did such a poor job - but proceeded in the face of real evidence some other person was responsible. And there is that other message here for all of us - protect that social security number!

This case is similar to one I handled this past year in Utah. There, a district judge dismissed a case before the jury could decide whether a prominent Salt Lake law firm had acted with malice when it falsely reported to an insurance company (and its client) that my client (a partner in the firm) had over-billed for his work. That allegation was false and unfounded, but it had the effect of destroying the client's ability to work as an insurance defense lawyer. His twenty-five year career doing insurance defense work was destroyed by the falsehood. Their proof - he had not signed into his computer during times that he billed the insurance carrier. You know, like when he was in court! The malice we had to prove - and I believe we proved it - is the same as here. Not evil or bad will (though I think we also proved that), but an intentional act done without ordinary caution. Been in a similar situation? Call us or fill out the contact form. Maybe we can help. We haven't given up in Utah, case is on appeal and we expect to win. Another lesson learned - never give up.

I just returned from a meeting of the Idaho Criminal Rules Committee during which we considered a question posed by a Magistrate Judge: Why do we waste valuable court time with preliminary hearings? Couldn't we just eliminate them and reduce the court's work? Sure - and maybe we should just get rid of those nagging, time consuming jury trials! Seriously though, what is the point of the preliminary hearing, at which a Magistrate Judge determines probable cause, when in reality that has occurred already in the process. The Committee uniformly agreed that the preliminary hearing serves several very important purposes. First, it allows the Defendant an opportunity to contest the allegations against him for the very first time. His (or her) lawyer can cross-examine and confront witnesses on whose statements were relied for the initial probable cause determination. You don't get that opportunity with a "secret Grand Jury." Second, it allows the lawyers and the Defendant an opportunity to talk about the case and the evidence. We almost always have an offer to settle the case at the preliminary hearing - so it serves to bring the parties together as if to potentially mediate the matter. Third, the preliminary hearing allows the Defendant a chance to consider the bail set initially, and present evidence why bail should be reduced. That is vital to the Defendant, who is often still in jail! So the preliminary hearing is an important part of due process - and the Magistrate who posed the question will likely be unhappy to hear that we all agreed, and by all, I mean the judges, magistrates, prosecutors, public defenders and private counsel on the committee. The preliminary hearing will continue to be the first chance for a defendant to prove his or her case. I know - the defendant does not have to prove anything! Nice theory! Let's talk about that soon. If you are facing a felony charge get ready to start winning your case at the preliminary hearing - still coming to a courtroom near you!

Another week starts with a new focus - crime victims. I am drafting a complaint in a case for a victim of a terrible crime. She is young, and hurt and humiliated, and she is deserving of the very best chance at a future she can possibly have. Our lawsuit may be that chance. Crime victims are so frequently scarred emotionally and physically, and their ability to recover for their damages is almost always limited because the perpetrators so seldom have any money or property. You see the problem with this system is simple - justice only comes in dollars on the civil side. Great liability and huge damages will not result in any justice unless the defendant has something you can grab. There is that great line from To Kill A Mockingbird (I think!): "Whatta' ya' got? Give it ta' me!" And that's my plan - take it all away from the guy who hurt her. I probably won't be able to get it all - but this time - we are gonna' try. Victims like my client have huge problems in their futures. They have problems trusting men and women in whom they would otherwise place trust. They suck at relationships. They do not complete what they start - like education and jobs. And they have trouble parenting their own kids. In general, they are left in a state of fear, self doubt and confusion. So how can the system help? Simple - give them the money they will need to get counseling, training, and education. Compensate them for the lost earnings and opportunities that they will miss because of the crimes perpetrated against them. Money. There is nothing else on the civil side - and with the likely criminal outcome resulting in the perp spending a long term at a state warehouse - or penitentiary - he won't need that money as badly as the little girl whose life he so easily stole. Wierd post for a criminal defense lawyer? Yeah - I suppose, but most of us in the criminal court system are focussed on justice. Somedays justice takes a bite out of a guy like this. Those tooth marks on his butt - those will be mine. Complaint to follow.

OK - back from TLC and re-entry is a bit troubling, but a trial is just the thing to check out those skills. Like putting the witness back in the scene and having him or her take you through, in first person, what they see. So today I had to try a little misdemeanor case. Two 50 year old guys complained mightily to the police that my 70 year old client had "battered" them at a bar. The real deal was their damages. That's right - around $5000 worth of medical tests to determine that they had no real injuries, save their pride. So without any offer to plead the case to something reasonable - like disturbing the peace - we rolled the dice. Now even a goofy trial like this takes time to prepare for and time to try. Start your clocks at around 7:00 am this morning, and shut them off around 7:30 pm. In the end the jury saw it our way. Not Guilty. There are no two better words to hear when forced to trial on some goofy, miserable, meandering river of a misdemeanor jury trial. NOT GUILTY. BUT how you may ask? Client admitted that he hit one of the gentlemen on the chin. Client also admitted that he moved toward gentleman number two and two fell down. So what about it? TLC. Just some good easy listening to their testimony and the resulting cross in which number one admitted he moved toward Defendant "and then Defendant hit me." That "movement" ultimately looked like number one wanted to attack my client. And two - well he simply told a way different story, under oath, than had number one. He impeached number one on key points. And the jurors heads nodded, and their eyes rolled, and it was clear they did not believe either number one or two. Just listen ... and you will be surprised what you hear in court. So maybe my next blog will come sooner - I know it will as I am now working on a very nice CRIME VICTIM'S CASE. Civil complaint to follow - within a week or so. But tonight I am thinking about today's victory. If you face the state in a criminal case, better be ready to ride the waves. When they stop coming in big sets, you may hear that jury say NOT GUILTY.

They say attending the Trial Lawyers College can change your life. I'm not sure I want my life changed, but I am looking forward to spending the next three weeks at Gerry Spence's Trial Lawyers College, in the remote mountains of Wyoming. I'll be there with 48 other lawyers, chosen from across the US. The whole thing sounds daunting but exciting at the same time. Spence and others will attempt to remake us in our own image - that's right - our image, not theirs. The truth is, no lawyer can successfully be anyone other than him/herself. Attempting to imitate anyone else would simply not work because jurors see through that type of ruse. As I tell jurors, I am just a little guy in baggie pants. Just a "ham & egger," catching cases that seem mundane to some, but case that are huge to the folks involved. So off I go to learn from great teachers - and to teach a little myself. I will share the stuff I have learned that works, and get ideas for cases that are coming up soon. Over the next three weeks I will break away from Thunderhead Ranch (no cattle, no round-ups, no TV, no cell phones) and post updates about my experience. If you have been wondering what happens there, stay tuned. I can't share the secret handshake, but I will share what I learn about the process. After 25 years of doing this stuff, a little refreshing seems in order. And maybe you will decide that you should attend too.

Speaking of process - I was reminded today of an article that appeared in Litigation magazine in 2006, authored by a Federal Magistrate Judge I left on a racketeering jury. Yes, I left him on a jury. Other lawyers called me as the trial dragged on, mostly wondering what kind of fool would leave a sitting judge on a jury. As it turned out - the kind of fool who trusts the man, and does not fear the robe. The article is entitled A Judge On The Jury and it records Judge Larry Boyle's observations about the role of the lawyers at trial. The trial went on for ten weeks, and the indictment alleged over 150 crimes ("predicate acts" in RICO lingo). In the end, the jury acquitted on all but 5 of the predicate acts. It hung on those 5, unable to reach a unanimous finding. More important than the result is Judge Boyle's observations on how jurors watch what we do as lawyers. His article should be read by every lawyer and client before going to trial. Jurors watch the client and the lawyers, but in the end it is the evidence - the testimony and the exhibits - that drive the cart. That could be good or bad news depending on your case. If you have a minute read the article. No more minutes for me. Gotta pack for TLC. Maybe I can figure out how those 5 predicate acts got away.

So the third day came and the evidence against my client did not look nearly as grim as expected. Yes, she had received money from the state for caring for her mother; and yes, her mother had not been in Idaho (or the US for that matter) during some of that time. Still, the charges required proof of a specific intent, and when the state rested, with little more than I had conceded in opening argument, I did what every criminal defense lawyer does - I uttered that Rule 29 stuff. Not enough evidence judge. No jury could find specific intent beyond a reasonable doubt. And I handed him a little brief with a couple of Idaho cases on specific intent in theft cases. And I breathed a little breath of that rarified courtroom air, and waited. But not for long. "It's a little thin, Mr. prosecutor. You've gotten all you could out of it, but the evidence is what it is." "Yes," he said, "but intent can be inferred." But not here. Not this time, Mr. Prosecutor. This was one of those cases that tugs at your guts in trial. My client had taken great care of her aging mother. Mom had gone back to Iran (and yes, that raises all kinds of problems in jury selection) to visit family. The money had been used to help pay for care in Iran. Good faith trumps specific intent to defraud, sometimes. And this was one of those times. Not Guilty. Motion for Judgment of Acquittal granted. Client smiling and mom thankful, we left the courthouse. But now the question: how much proof of the specific intent is really required? If you are headed to trial in one of these - chime in.

Thursday is not a day that one usually begins a felony Medicaid Fraud trial, but that is where I find myself today. Trying to beat the long weekend, we got it going today in hopes of getting to the jury by next Tuesday. I thought a lot today about Gerry Spence's advice in his latest book that we "embrace" our fears about the case during voir dire. Tell the jury about what scares you. Then get them to talk about the issue and see if they have the same fears or prejudice. In my case it is my client's ethnicity - she is Iranian. I shared with the jury my concern that I may have prejudged Iranians in an unfavorable way and I wondered, out loud, if any of them shared similar thoughts. Could they give my client a fair trial? The answer really would depend, in part at least, on whether they could get past their own prejudice. And Gerry - it worked. They spoke. We talked about the hostages, and the Shah, and all things Persian. Then a little mouse of a voice reminded us that my client was an American citizen, just like we are. "She's just like us." And heads bobbed, and affirmations echoed and we were over the "she's one of them" stuff. Spence says this stuff works for "ham & eggers" like me, and perhaps, you. Maybe it does. Will let you know how this trial works out. And if you want to learn more and win your next case, well, you know the book to buy! Win Your Case.

I am Boise, Idaho criminal defense and DUI attorney Chuck Peterson, and for over thirty years I have been a practicing trial lawyer. I focus on providing the best defense possible to my clients facing criminal charges, and trying the...More...